Jason Jones died last month due to injuries he suffered after being set on fire by a Catskill police officer in what appears to be a tragic accident. Jones was in the lobby at the Catskill Police Department (CPD) when he took off his shirt, covered his body in hand sanitizer, and began walking around the room. Officers were then seen issuing commands to Jones which he did not appear to comply with, one officer pointed his taser at Jones, Jones continued his non-compliance, the officer fired the taser, and Jones burst into flames. Then every officer fled the lobby rather than try to put out the fire. This case could be the result of failure to train on the part of the CPD, incompetence on the part of the officers, or both.
What This Case is Not
This case is not a murder or an otherwise intentional killing. It seems pretty clear from the footage that the officer never intended to light Jones on fire, so the questions then turn to who is responsible for this accident, was the responsible party reckless or negligent, and did their conduct rise to a level capable of overcoming qualified immunity.
Who is Responsible?
The answer to this question depends primarily on who screwed up and if more than one party screwed up who screwed up the worst. Did the officer screw up worst by firing the taser or did the department screw up worst by failing to train officers not to use tasers on people covered with flammable hand sanitizer.
As the expert in the video embedded below this article points out, officers are trained not to use tasers on subjects covered with some flammable liquids, but that training typically focuses on gasoline, natural gas environments, and other encounters with materials commonly known to be flammable. The expert also said, "in most taser trainings we don't talk about sanitizers being that obvious flammable liquid." If the CPD never told their officers not to use tasers on subjects covered with hand sanitizer then failure to train is the moving cause primarily responsible for Jones catching on fire. Unfortunately, mere lack of proper training alone is not enough to hold a municipality liable. To hold a municipality liable you must show that the failure to train amounted to deliberate indifference. For example, this author is currently pursuing a claim against a local municipality in federal court and prevailed at summary judgment on several issues, but lost when trying to link an injury to a custom. The judge in that case explained the elements of a failure to train claim as follows:
"To prevail on a Monell claim, Plaintiff must demonstrate that (1) he was deprived of a constitutional right; (2) the municipality had a policy or custom; (3) the policy or custom amounted to deliberate indifference to Plaintiffs constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dept of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). " - Jennifer Zipps, United States District Judge (see Sullivan v. Multnomah County et. al. page 16 https://copblaster.com/uploads/files/sullivan-multnomah-summary-judgment-order.pdf)
It should be fairly easy to prove that Jones was deprived of a constitutional right and the municipality had a policy or custom of using tasers which failed to include proper training pertaining to sanitizer if in fact proper training was not provided, but it would be difficult to prove that the policy or custom amounted to deliberate indifference. To prevail on a deliberate indifference claim against a municipality's policy or custom one must prove that "in light of the duties assigned to specific officers or employees, the need for more or different training is obvious, and the inadequacy so likely to result in violations of constitutional rights, that the policy-makers . . . can reasonably be said to have been deliberately indifferent to the need." Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (citing Canton, 489 U.S. at 390)", Sullivan v. Multnomah. Under this standard the Jones family would need to prove that the likelihood of a taser setting someone with hand sanitizer on their body on fire is such that the need to train officers not to use tasers on them was obvious and the inadequacy was so likely to result in a violation of constitutional rights, that the policy-makers can reasonably be said to have been deliberately indifferent to the need.
The rarity of this incident weights in the department's favor. This is the first time we have ever heard of a taser lighting someone on fire or their body being engulfed in flames by burning hand sanitizer, but apparently that is just because we were not paying attention. A brief trip to the search engines revealed several cases of large fires being caused by hand sanitizer and government agencies taking prophylactic measures:
- In May 2020, CNN highlighted the ban on hand sanitizers in correctional facilities. The Federal Bureau of Prisons (BOP) considers it contraband due to its alcohol content because inmates might drink it or use it to start fires. Many state prisons have the same policy, but several others including New York do not. However, hand sanitizer was banned there until recently. This shows that it was common knowledge in the law enforcement community that hand sanitizer is a fire hazard (https://www.cnn.com/2020/05/05/us/coronavirus-prison-hand-sanitizer-contraband-invs/index.html). Could this mean that department's like the CPD should have connected the dots between the risk of hand sanitizer fires and the ability of a taser to cause one? That is not an argument likely to overcome qualified immunity;
- Later in May 2020, a Texas woman caught on fire from lighting a candle after using off-brand hand sanitizer. News coverage of the case included a statement from the CDC saying that fire incidents related to hand sanitizer is very low (https://abcnews.go.com/GMA/News/video/woman-burned-off-brand-hand-sanitizer-catches-fire-72834610). Stories like this support the defense that the fire risk of hand sanitizer is so low that failure to know about it or include it in training for others could not rise to the level of deliberate indifference;
- In October 2020, a teenager suffered serious burns after throwing part of a bottle of hand sanitizer into a fire pit (https://www.boston25news.com/news/millis-teen-warns-others-about-dangers-hand-sanitizer-around-fire-while-recovering-third-degree-burns/SSRYNUQTYBCOVFUOZ36DGSWPVY/);
- In 2021, a car erupted in flames when a man smoked a cigarette after using hand sanitizer. Media coverage of the case included a warning that the Mechanical Contractors Association of America sent to workers about the danger of using hand sanitizer and touching metal surfaces before the liquid evaporates due to static electricity because it can ignite the vapor from the hand sanitizer (https://www.nbcwashington.com/news/local/car-explodes-into-flames-as-driver-uses-hand-sanitizer-while-smoking-a-cigarette/2671728/).
There are other examples of hand sanitizer causing fires resulting in injury online, but not many. We think that the combination of hand sanitizer being a relatively new addition to the correctional environment, the fact that we couldn't find many examples of tasers causing fires, and none of those examples involved hand sanitizer all weigh in favor of qualified immunity.
Failure to Render Aid
As we mentioned earlier, we have found examples of tasers causing fires and the expert in the video below admitted that officers are trained not to use tasers in environments with obviously flammable materials. We think that the officers choosing flee the lobby rather than try to put out the fire is a bigger liability for the department than causing the fire in the first place. Police officers are first responders that are supposed to be properly trained to put out small fires just in case they arrive on the scene of a fire before the fire department. A properly trained officer should have tried to smother out the flames rather than flee, so we think either the department failed to properly train the officer or they consciously disregarded the danger to Jones by fleeing the room.
Other Examples of Taser Fires:
- In 2015, a California man was killed by federal agents after his car exploded. The cause of the explosion was believed to be a spilled gas can inside the car ignited by the taser. The victim's family sued the federal government for among other things not helping (https://www.dailymail.co.uk/news/article-3020589/Shocking-video-shows-car-bursting-flames-burning-death-25-year-old-inside-stopped-border-patrol-Tasered.html);
- In 2017, an Oklahoma man died after covering himself in gasoline and getting tased. The description of that incident sounds eerily similar to this one which supports the theory that police departments should treat hand sanitizer like gasoline from now on (https://www.firerescue1.com/burned/articles/man-soaked-in-gasoline-is-ignited-in-flames-by-taser-6qiJebX5EzrLYZiS/);
- In 2018, French police set an unarmed black man on fire with a taser. Audio suggests that the officers think someone sprayed flammable gas. The officer that set the victim ablaze quickly rushed to his aid and helped put out the fire with his hands (https://abc7.com/police-taser-fire-tear/2932515/);
- In 2019, a man in Weed, California was set on fire by a police taser. Media coverage indicates that the officer knew the victim to be covered in a flammable liquid. This case led to criticism of police training (https://www.redding.com/story/news/local/2019/10/23/siskiyou-county-family-weed-man-burned-police-stun-gun-fire-speaks-out-mental-health-training/4058122002/);
- In 2019, a Philadelphia Police officer set an unarmed black man ablaze outside a popular restaurant with a taser. The incident in too place during the early morning hours when the restaurant usually serves drunks stumbling in from nearby bars needing to soak up the booze before going home, for that reason we suspect the victim may have spilled a drink or two on his pants before getting tased. The victim had also been on the pavement right before, so maybe a vehicle had leaked flammable liquid there. In that case the officers didn't try to put out the fire either, but the victim put it out himself after just a couple seconds (https://6abc.com/philadelphia-stun-gun-fire-jims-steaks/5118026/);
- In 2019, a suicidal Arlington man was set on fire after covering himself in gasoline. One officer holstered his taser and said that tasing the victim would set him on fire, but two others deployed their tasers anyway. An investigation by the media revealed that the company which manufactures tasers warn against using them around flammable materials, but the police department training manual did not. They also investigated other departments and found that many fail to prohibit taser use in flammable situations (https://www.nbcdfw.com/news/local/distressed-suicidal-and-drenched-in-gas-their-grieving-loved-ones-question-police-taser-policies/2078184/);
Law Enforcement Knows of Fire Risk
It is common knowledge in the law enforcement community that tasers can cause fires. Since the risk of fires resulting from taser use should be obvious to any law enforcement policy-maker then failing to train officers to put out such fires would constitute the conscious disregard of a risk which a reasonable person in the policy-maker's shoes should have known. If the CPD does not train officer to put out taser fires then they should be liable for the death of Jones.
If the officers were in fact trained to put out taser fires and just ran away out of cowardice then they should held liable. Any first responder properly trained to put out small fires consciously disregards the risk the fire poses to the victim if they choose to flee rather than smother out the flames. The question would then turn to whether the officers are liable in an official or individual capacity. The argument for official capacity would be that the officers were deliberately indifferent to the Jones' safety in the course of their official duties. The argument for individual capacity would be if the officer's conduct fell outside the scope of his employment, so the CPD could potentially argue that the officers were trained to put fires like that out and therefore fleeing was not part of their job. However, police departments stick together and often have insurance policies covering judgments against officers in their individual capacities, so often the outcome for the plaintiff is the same.
Conclusion
Jason Jones should be alive today. There is no question about that. The question is whose fault this is and why. We think the answer to that depends on a thorough review of department policies and training procedures involving taser use when flammable materials are present. Due to the prevalence of taser policies that do not address flammable liquids at police departments across the country and the rarity of hand sanitizer fires we believe that the officers were likely poorly trained for this scenario.
We do not know the identities of the officers at this time. If you know who they are please contact us.
The video below is a news broadcast with an expert, but it does not contain the whole video. You can watch the full video at https://www.youtube.com/watch?v=cGJ6gDMWL9s